Lincoln's Code

by John Fabian Witt

  Drawing lessons from Napoleon’s mistakes, Scott developed an innovative strategy for dealing with the twin problems of guerrilla attacks and indiscriminate retaliation by American volunteers. The first problem he took on was one he had been working on for decades: the discipline of his own soldiers. Zachary Taylor had long complained that he could not identify the perpetrators responsible for civilian deaths, even when they were his own soldiers. But if Taylor had been able to do so (and there was little reason to think he had tried very hard), he faced a seemingly insuperable problem: U.S. military authorities in Mexico lacked the authority to punish most crimes committed by American soldiers against Mexican noncombatants. The Articles of War, which traced back to the Continental Congress and which had not been significantly revised since 1806, left the authority to punish such crimes in the state and territorial courts of the United States. It had never occurred to the Congresses of the early republic that a U.S. army might fight a war of occupation in foreign territory. And so, when Taylor asked Secretary of War William Marcy in the fall of 1846 what to do with an American soldier who had murdered a Mexican soldier after the end of combat at Monterey, Marcy instructed Taylor that military tribunals were probably incompetent “to take cognizance of such a case.” Absent more authority from the Congress, Marcy advised Taylor simply to release the prisoner “from confinement and send him away from the army.”

  Taylor meekly complied, but Scott thought Marcy’s advice absurd. Being discharged was exactly what disgruntled volunteers wanted most. American commanders in Mexico would never be able to maintain discipline over their men without the authority to punish those who committed crimes against the enemy.

  Before he left for Mexico, Scott pressed the Polk administration to propose legislation to Congress authorizing military tribunals in Mexico to try such offenses. But neither the Congress nor the president was willing to act. Members of Congress claimed that there was no need for legislation because the president already had the power to try such crimes based on his authority under the laws of war. If he had such power, however, Polk failed to exercise it. As Scott later wrote, the question of an inherent executive power to enact a federal criminal code was “too explosive for safe handling.” In Scott’s homespun metaphor, Polk and Marcy handled the subject as gingerly as “the terrier mumbles a hedgehog.”

  Scott took matters into his own hands upon arriving in Mexico. By his own order he created a new martial law authority over crimes committed by U.S. soldiers on foreign soil. Scott’s General Orders No. 20, issued at Tampico on February 19, 1847, authorized tribunals that he called “military commissions” for a wide array of acts deemed atrocities. He listed assassination and murder, malicious stabbing or maiming and rape, malicious assault, battery, robbery, theft, the wanton desecration of churches, and the destruction of public or private property. Military commissions were empowered to try any such offense committed by or upon a member of the United States’ forces, including offenses committed by inhabitants of Mexico. Scott issued General Orders No. 20 anew at each major juncture in the campaign across central Mexico. He distributed the order widely in English and Spanish at Vera Cruz in April, at Puebla in June, and at Mexico City in September.

  Scott’s military commissions tried some 303 Americans during the Mexican War. As a mechanism for disciplining his own soldiers, his martial law innovation was a great success, a crucial piece of the widely praised campaign he waged from the sea to Mexico City. Indeed, Scott’s martial law order quickly became part of an American national mythology of chivalry in the Mexican campaign. It helped Americans view with pride the efforts of their army to bring order to the mounting chaos in Mexico. As one writer put it, the war had been fought with “chivalric generosity” and an “enlightened moderation” that connected the American armies in Mexico to “the best days of Knighthood.” Shortly after the war ended, the best-selling author Emma Willard wrote proudly that the “Mexican capital was not conquered by the American republic, as Carthage and other cities were by the Roman.” Mexico City had not been destroyed. It had not “become the sport of petty tyrants and a lawless soldiery.” Even critics of the war came to think that “no war, in any age or country, was ever waged upon principles so humane, so civilized” or “so Christian” as the Mexican War. Scott’s closest aides were positively effusive. “It would be a blessing to humanity,” gushed Lieutenant Colonel Ethan Allen Hitchcock, “if General Scott’s martial law order in Mexico could be recognized as an integral portion of the international law of the world.”

  DESPITE HITCHCOCK’S PRAISE, one feature of Scott’s military commissions was actually quite strange. It was one thing to punish American soldiers and Mexican civilians within U.S. lines. Such authority had long existed in the basic structure of European and American militaries. The much harder problem was to understand how Scott had the right to punish commissioned members of the Mexican army.

  Scott initially declined to bring regular Mexican soldiers or commissioned guerrillas into his commissions. His 1846 proposal for the Congress and for Polk and Marcy proposed to punish “inhabitants of the hostile country” who committed murder or theft or any one of a number of other crimes. General Orders No. 20 at Tampico in February 1847 similarly established jurisdiction over “any inhabitant of Mexico.” By “inhabitant,” Scott almost certainly meant noncombatants, since the word had long been used in military law as a term of art that excluded soldiers. Two months later, Scott confirmed that he did not contemplate prosecuting enemy soldiers. In a proclamation to the people of Mexico, he announced that “injuries committed by individuals, or parties of Mexico, not belonging to the public forces,” would be “punished with rigor.” Those who did belong to the “public forces” of Mexico would not, or at least not by Scott’s military commissions.

  As late as October 1847, Secretary of War Marcy treated commissioned Mexican guerrillas not as criminals, but as soldiers entitled to prisoner of war status. Marcy excoriated guerrilla tactics, to be sure. They were “hardly recognized as a legitimate mode of warfare,” he wrote to Scott, “and should be met with the utmost allowable severity.” Guerrillas and their supporters were therefore not to be paroled or exchanged. But Marcy stopped short of suggesting that commissioned Mexican guerrillas were subject to criminal prosecution. Even guerrillas, he insisted, “should be seized and held as prisoners of war,” not prosecuted as criminals.

  Yet as the war ground on into its final months, American officials subtly but crucially altered the legal status of Mexican soldiers engaged in irregular war. Even as Marcy articulated the view that guerrillas were generally entitled to prisoner of war treatment, Taylor began to redescribe guerrilla attacks on his wagon trains as attacks by “robbers.” The new description did not reflect a change in the underlying conduct of the Mexicans. Nor did it arise out of a change in the status of the Mexicans engaging in the conduct. Commissioned Mexican guerrilla parties were still assaulting wagon trains and killing the Mexican nationals they found acting as teamsters for the U.S. armed forces. Nonetheless, Taylor had begun to shift from the idiom of war to the language of crime.

  The change in treatment moved slowly through the U.S. forces in Mexico. In the north, Brevet Major General John E. Wool decreed that “guerrilla parties” were “highway robbers under another name” and would be “executed wherever found.” Further south, Major Walter Lane’s Texas Rangers captured a guerrilla in late 1847 and executed him two days later after a hasty field tribunal. To ensure that word of the American attitude toward guerrillas would be spread far and wide, Lane ordered the guerrilla shot so that “as many Mexicans” as possible could “witness the execution.” When Major General Joseph Lane (no relation to the Texas Ranger) led antiguerrilla forces on an engagement at Sequalteplan, he made plans to execute the enemy commander as a criminal.

  At the same time, the U.S. Army began convening informal military tribunals styled as “councils of war” to prosecute Mexican military recruiters caught trying to lure away Americ
an soldiers. Mexican recruitment efforts posed a real problem. Some 6,825 American soldiers deserted during the course of the war, nearly 7 percent of the entire Army; several hundred of them formed the San Patricio Battalion, made up mostly of Irish and German Catholic immigrants who signed up to fight alongside their fellow Catholics in Mexico. The military commission scholar David Glazier has identified twenty-one accused recruiters tried by councils of war beginning in June 1847. Eleven were convicted, and the punishment was “almost always death.”

  In December, Winfield Scott drew on the councils of war for Mexican recruiters to formalize the treatment of guerrillas as criminals. General Orders No. 372, issued from Mexico City, announced that “atrocious bands called ‘guerrilleros’ and ‘rancheros’” were violating “every rule of warfare observed by civilized nations.” Many guerrillas acted under the commission and instruction of the Mexican authorities. But Scott no longer made such a distinction. “Whether serving under Mexican commissions or not,” Scott ordered that such guerrillas were to be sent before a “council of war” for “summary trial” according to “the known laws of war.” Councils of war, in turn, were to punish “any flagrant violation of the laws of war” by death or lashes, so long as there was “satisfactory proof that such prisoner, at the time of capture, actually belonged to any part of a gang of known robbers or murderers, or had actually committed murder or robbery upon any American officer or soldier or follower of the American Army.”

  Scott’s councils of war were summary indeed, for there is almost no information in the historical record about the councils of war that tried guerrillas. No written transcripts were taken, at least none that survive. No general orders were published. As a result, we cannot be sure how many guerrillas were tried by council of war. Even the most thorough military commission scholars have found not a single surviving record of a council of war trying a Mexican guerrilla. But it seems clear that field tribunals in Mexico did exactly this. Colonel William Winthrop, who was the leading late nineteenth-century American authority on military law and who served in the Judge Advocate General’s office during the Civil War, wrote in the 1880s that “guerrilla warfare” and “violation of the laws of war by guerrilleros” were among the “principal charges referred to and passed upon” by the councils of war in Mexico. Winthrop had not been in Mexico himself, but he was in a position to know what had taken place there. Moreover, Winthrop’s report is corroborated by anecdotal evidence. Major General Joseph Lane’s antiguerrilla detachment reported using precisely such a field tribunal to execute a guerrilla in late 1847. And at least one American officer was punished for executing a guerrilla “without the sanction of a council of war.”

  SCOTT’S PROSECUTIONS OF Mexican guerrillas occasioned little fanfare at the time. But they marked a transformative moment in the laws of war. The U.S. military had never seen anything like it before. In the Revolution, Washington had tried Major John André as a spy. But spies were not criminals in the ordinary sense. They were loyal servants of their country whose clandestine (and often heroic) missions exposed them to a particularly severe sanction under the rules of the game called war. Though the spy might be forgiven for overlooking the distinction, spies were executed because doing so was simply (in Vattel’s words) the only means “of guarding against the mischief they may do to us.” That was why a spy who successfully made his way back to his own army’s lines could no longer be executed, even if he was subsequently captured.

  Nor were Andrew Jackson’s executions of the British subjects Arbuthnot and Ambrister in Florida in 1818 comparable. Neither Arbuthnot nor Ambrister were members of the British armed forces; they were private agents working on their own account and thus not protected as prisoners of war. The closest thing the United States had ever seen to Scott’s guerrilla prosecutions were the messy and ultimately inconclusive accusations leveled by Thomas Jefferson against Lieutenant Colonel Henry Hamilton (“the hair-buyer general”) in 1779 for stirring up savage warfare on the early frontier and mistreating American prisoners. But even there, Jefferson had stopped short of formally treating Hamilton as a criminal. At Washington’s urging, Jefferson had eventually relented and released Hamilton on parole as a prisoner of war.

  Few precedents for Scott’s councils existed in the history of modern European warfare. Centuries earlier, medieval chivalric courts had tried violations of the laws of arms by knights from around Europe. But the courts of chivalry had long since dwindled into insignificance. By the time of the wars of the French Revolution and Napeoleon’s campaigns, controversial criminal punishments took place not between admitted enemy countries but in cases where one side denied that the other was entitled to the privileges of a sovereign state in wartime. When Napoleon arrested and executed the exiled French aristocrat the duc d’Enghien in 1804, for example, he charged him with treason, not war crimes. Napoleon’s chief of police famously said the controversial execution was “worse than a crime, it was a blunder”; but no one at the time suggested that either Enghien’s conduct or the execution itself amounted to war crimes. Napoleon’s regime levied the same treason charges when it executed Don Giovanni Batista, the Marquis Rodio, in Calabria in southern Italy in 1807, and again when it executed guerrillas on the Spanish Peninsula in 1808. Napoleon claimed to exercise authority as the new sovereign (Spain) or as the military governor of territory occupied by the French army (Calabria). His victims were thus treated as traitors and rebels, not as soldiers. But the United States did not claim to be the new sovereign of Mexico, and its small army could not plausibly claim to occupy the vast landscape of Mexico.7

  The absence of analogues in the recent history of warfare for Scott’s treatment of the Mexican guerrillas reflected the basic structure of the orthodox laws of war as they had been handed down into the 1840s. For centuries, the law of war had been organized around separating soldiers from criminals, and for at least 100 years, jurists in Europe, Great Britain, and the United States had agreed that the key distinguishing feature—the very definition of a soldier—was holding a commission issued by a state. Those who held such a commission were privileged to commit violence in wartime. They were immune from punishment. Indeed, discussions of the laws and usages of war contained almost nothing about the punishment of crimes by men who carried such commissions.

  To be sure, violations of the laws of war were met with forceful sanctions. But such sanctions were not conceived of as punishing an individual offender for an infraction against the rules of warfare. The notion of punishing individual members of the enemy’s armies for violations of the laws of war was almost completely absent. William Blackstone, the English jurist with whom every American lawyer in the first half of the nineteenth century was familiar, wrote that when an individual violated a rule of the law of nations, it was the obligation of the violator’s own government to see to it that he was punished. (As Blackstone put it, violators’ home states were obliged “to animadvert upon them with a becoming severity, that the peace of the world may be maintained.”) The victim government’s recourse, by contrast, was not to the criminal law but to diplomacy and ultimately retaliation.

  It was retaliation—not criminal punishment—that formed the eighteenth- and early nineteenth-century law of war’s mechanism for responding to violations. Writers like the American Henry Wheaton and the Swiss Vattel set out elaborate taxonomies of retaliation, ranging from taking an eye for an eye (“retaliation”), to the suspension of privileges for enemy nationals (“retortion”), to the seizure of enemy property (“reprisals”). Wheaton wrote that when “the established usages of war are violated by an enemy,” retaliation was the ordinary tool “to compel the enemy to return to the observance of the law which he has violated.” As one leading international lawyer put it fifteen years after the Mexican War had ended, the law of war had not traditionally been “a Penal or Criminal Law.” It was instead “a code of regulations in between sovereigns.” A half century later, a U.S. Army officer would put the point more bluntly. The
law of war, wrote Captain Elbridge Colby, was not a law of crime and punishment but a law enforced by “the cold steel of the bayonet,” by “the cannon that speak the name of Krupp,” and by “the typewriter rattle of automatic arms.” These were the tools of “the litigation of nations under the laws of war.”

  There were stray exceptions. The eighteenth-century German jurist Georg Friedrich von Martens had noted as an afterthought that “soldiers who employ means which are contrary to the laws of war” could “be punished” by the enemy. Vattel similarly observed as an aside that if a prisoner of war were “personally guilty of some crime,” the capturing army was “at liberty to punish” him. A few narrow categories of persons—foreign military recruiters and assassins in particular—were said to be subject to punishment. But with the exception of isolated references such as these, Enlightenment-era writers on the law of war had virtually nothing to say about punishing violators of those laws.

  The reason why was articulated most forcefully by the French political theorist Jean-Jacques Rousseau. War, he wrote, was “not a relationship between one man and another, but a relationship between one state and another, in which individuals are enemies only by accident.” A state, Rousseau explained, could only have “other States” as enemies because it was “impossible to fix a true relation between things of different natures.” Here was the same idea Daniel Webster had expressed when he opposed criminal prosecution in the McLeod episode. The Mexican guerrillas were engaged in what no one doubted counted as a war. Their targets were usually U.S. combatants. Under Rousseau’s reasoning, they were far better positioned than McLeod had been to argue for immunity from American criminal punishment.